R. George v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond George, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 23 C.D. 2022
Respondent : Submitted: July 15, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 11, 2022
Raymond George (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) December 15, 2021 order
affirming the WC Judge’s (WCJ) decision that granted Claimant’s Petition to
Reinstate WC Benefits (Reinstatement Petition) as of May 14, 2019, and granted the
City of Philadelphia’s (Employer) Petition to Modify WC Benefits (Modification
Petition) as of September 17, 2019. Claimant presents two issues for this Court’s
review:1 (1) whether the Board erred by affirming the WCJ’s decision reinstating his
temporary total disability (TTD) benefits effective May 14, 2019, instead of January
5, 2012; and (2) whether the Board erred by upholding the WCJ’s decision granting
1
Claimant presents his issues in terms of whether the Board erred without reference to the
WCJ’s decision. However, this Court’s “review is limited to determining whether the WCJ’s
findings of fact were supported by substantial evidence, whether an error of law was committed,
or whether constitutional rights were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol
Pa. Coal Co. LLC), 252 A.3d 1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa.
2021). Therefore, the issues have been restated in terms of whether the Board erred by affirming
the WCJ’s decision.
the Modification Petition when Act 1112 is unconstitutional. After review, this Court
affirms.
Background
On December 28, 1999, Claimant sustained injuries while in the course
and scope of his employment as a police officer for Employer, for which he received
TTD. On January 5, 2012, Claimant underwent an Impairment Rating Evaluation
(IRE) during which the doctor determined that Claimant had an 8% whole-body
impairment. See Reproduced Record (R.R.) at 127a. Based upon the parties’
agreement memorialized in a March 22, 2012 WCJ decision, Claimant’s status was
modified to temporary partial disability (TPD) effective January 5, 2012.3
On June 20, 2017, the Pennsylvania Supreme Court decided Protz v.
Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827(Pa. 2017) (Protz II), wherein it declared that Section 306(a.2) of the WC Act (Act)4
delegated its lawmaking authority to the American Medical Association (AMA) in
violation of article II, section 1 of the Pennsylvania Constitution,5 and struck the
provision from the Act in its entirety.
2
Act of October 24, 2018, P.L. 714, No. 111. Act 111 repealed an unconstitutional
Impairment Rating Evaluation (IRE) provision and replaced it with a new IRE provision, Section
306(a.3) of the WC Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of Act
111, 77 P.S. § 511.3, that was virtually identical and effective immediately.
3
On February 25, 2013, a WCJ modified Claimant’s WC benefits to reflect Employer’s
credit for Claimant’s pension in conjunction with a Notice of Benefit Offset. As a result,
Claimant’s WC benefits were modified to $155.95 a week from his prior $588.00 compensation
rate, reflecting a $432.05 credit.
4
Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S.
§ 511.2, was repealed by Act 111, and replaced by Section 306(a.3) of the Act.
5
Article II, section 1 of the Pennsylvania Constitution specifies: “The legislative power of
this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a
House of Representatives.” Pa. Const. art. II, § 1.
2
Based upon Protz II, on May 14, 2019, before 500 weeks of Claimant’s
TPD expired, Claimant filed the Reinstatement Petition to have his TTD reinstated
effective January 5, 2012. On September 17, 2019, Claimant underwent an IRE
performed by Arnold Berman, M.D. (Dr. Berman), during which Dr. Berman
determined that Claimant had a 6% whole-body impairment. See R.R. at 121a-131a.
On November 15, 2019, Employer filed the Modification Petition, claiming that
Claimant’s disability status should again be changed to TPD effective September 17,
2019.6
The WCJ conducted hearings on June 15, August 19, and December
20, 2019, and August 14, 2020. On April 26, 2021, the WCJ granted the
Reinstatement Petition effective as of the May 14, 2019 Reinstatement Petition filing
date, and granted the Modification Petition effective as of the September 17, 2019
IRE date, with a credit against the 500-week partial disability cap for the weeks
Employer paid Claimant TPD. Claimant appealed from the portions of the WCJ’s
decision granting the Reinstatement and Modifications Petitions to the Board. On
December 15, 2021, the Board affirmed the WCJ’s decisions. Claimant appealed to
this Court.7
Discussion
Initially, after the Protz II Court struck Section 306(a.2) from the Act,
the General Assembly enacted Act 111, effective October 24, 2018. Act 111
6
On July 26, 2019, Employer filed a Petition to Terminate WC Benefits (Termination
Petition), alleging that Claimant had fully recovered from his work injury as of July 8, 2019, when
Claimant underwent an independent medical examination. The WCJ denied the Termination
Petition. That denial is not at issue in this appeal.
7
See supra note 1. Moreover, “[a]s with any challenge to the constitutionality of a statutory
amendment, our scope of review is plenary and our standard of review is de novo.” Konidaris v.
Portnoff Law Assoc., Ltd., 953 A.2d 1231, 1239 (Pa. 2008).
3
replaced former Section 306(a.2) of the Act with Section 306(a.3) of the Act, which
declares, in pertinent part:
(1) When an employe has received total disability
compensation . . . for a period of [104] weeks, unless
otherwise agreed to, the employe shall be required to
submit to a medical examination which shall be
requested by the insurer within [60] days upon the
expiration of the [104] weeks to determine the degree
of impairment due to the compensable injury, if any.
The degree of impairment shall be determined based upon
an evaluation by a physician . . . pursuant to the [AMA]
“Guides to the Evaluation of Permanent Impairment
[(AMA Guides)],” 6th edition (second printing April
2009).
(2) If such determination results in an impairment rating
that meets a threshold impairment rating that is equal to or
greater than [35%] impairment under the [AMA Guides,]
6th edition (second printing April 2009), the employe shall
be presumed to be totally disabled and shall continue to
receive total disability compensation benefits . . . . If such
determination results in an impairment rating less
than [35%] impairment under the [AMA Guides,] 6th
edition (second printing April 2009), the employe shall
then receive partial disability benefits . . . : Provided,
however, That no reduction shall be made until [60] days’
notice of modification is given.
(3) Unless otherwise adjudicated or agreed to based upon
a determination of earning power . . . , the amount of
compensation shall not be affected as a result of the
change in disability status and shall remain the same. An
insurer or employe may, at any time prior to or during the
[500]-week period of partial disability, show that the
employe’s earning power has changed.
(4) An employe may appeal the change to partial disability
at any time during the [500]-week period of partial
disability[:8] Provided, That there is a determination that
the employe meets the threshold impairment rating that is
8
Section 306(b) of the Act limits a claimant’s recovery of partial disability benefits to 500
weeks. See 77 P.S. § 512(1).
4
equal to or greater than [35%] impairment under the
[AMA Guides,] 6th edition (second printing April 2009).
(5) Total disability shall continue until it is adjudicated or
agreed . . . that total disability has ceased or the employe’s
condition improves to an impairment rating that is less
than [35%] of the degree of impairment defined under the
[AMA Guides,] 6th edition (second printing April 2009).
(6) Upon request of the insurer, the employe shall submit
to an [IRE] in accordance with the provisions of [S]ection
314 [of the Act] to determine the status of impairment:
Provided, however, That for purposes of this clause, the
employe shall not be required to submit to more than [2]
[IREs] under this clause during a [12]-month period.
(7) In no event shall the total number of weeks of partial
disability exceed [500] weeks for any injury or recurrence
thereof, regardless of the changes in status in disability
that may occur. In no event shall the total number of
weeks of total disability exceed [104] weeks for any
employe who does not meet a threshold impairment rating
that is equal to or greater than [35%] impairment under the
[AMA Guides,] 6th edition (second printing April 2009),
for any injury or recurrence thereof.
77 P.S. § 511.3 (emphasis added).
Section 3 of Act 111 further provides, in relevant part:
(1) For the purposes of determining whether an employee
shall submit to a medical examination to determine the
degree of impairment and whether an employee has
received total disability compensation for the period of
104 weeks under [S]ection 306(a.3)(1) of the [A]ct, an
insurer shall be given credit for weeks of total disability
compensation paid prior to the effective date of this
paragraph. This section shall not be construed to alter
the requirements of [S]ection 306(a.3) of the [A]ct.
(2) For the purposes of determining the total number of
weeks of partial disability compensation payable under
[S]ection 306(a.3)(7) of the [A]ct, an insurer shall be
given credit for weeks of partial disability
compensation paid prior to the effective date of this
paragraph.
5
Act 111, § 3(1), (2) (emphasis added).
Claimant first argues that the Board erred by affirming the WCJ’s
decision granting the Reinstatement Petition effective May 14, 2019 (the date he
filed his Reinstatement Petition), rather than January 5, 2012 (the date of his
constitutionally invalid IRE). Claimant specifically contends that the Protz II
Court’s rendering of Section 306(a.2) of the Act void ab initio invalidated the IRE
process in its entirety, such that he should have been reinstated to TTD status
effective the date of his January 5, 2012 IRE.
However, because Claimant did not challenge the validity of the
January 5, 2012 IRE until after Protz II was decided, Whitfield v. Workers’
Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599(Pa. Cmwlth. 2018) (en banc), and its progeny mandate that Claimant is not entitled
to reinstatement of total disability benefits as of the IRE date but, rather, “at the
time []he filed [his] reinstatement petition.” Whitfield, 188 A.3d at 617 (emphasis
added); see also Rose Corp. v. Workers’ Comp. Appeal Bd. (Espada), 238 A.3d 551,
564 (Pa. Cmwlth. 2020) (“[T]he Board’s conclusion that [the c]laimant was entitled
to reinstatement of total disability benefits as of the date [the c]laimant filed the
[reinstatement p]etition is consistent with Act 111, the [] Act, and precedent.”);
White v. Workers’ Comp. Appeal Bd. (City of Phila.), 237 A.3d 1225, 1231 (Pa.
Cmwlth. 2020), appeal denied, 244 A.3d 1230 (Pa. 2021) (“[The c]laimant’s
modification from total to partial disability was effective in 2013 and had not been
appealed. Accordingly, [the c]laimant [] is entitled to reinstatement as of the date of
h[is] reinstatement petition, not the effective date of the change in h[is] disability
status from total to partial.”).
In reaching its conclusion, the Whitfield Court observed that
reinstatement petitions are governed by Section 413(a) of the Act, which states, in
relevant part:
6
A [WCJ] designated by the [Department of Labor and
Industry (D]epartment[)] may, at any
time, . . . reinstate . . . a notice of compensation payable,
an original or supplemental agreement or an award of the
[D]epartment or its [WCJ], upon petition filed by either
party with the [D]epartment, upon proof that the
disability of an injured employe has increased . . .
recurred . . . . Such . . . reinstatement . . . shall be made
as of the date upon which it is shown that the disability of
the injured employe has increased . . . recurred . . . :
Provided, [t]hat . . . no notice of compensation payable,
agreement or award shall be reviewed, or modified, or
reinstated, unless a petition is filed with the [D]epartment
within three years after the date of the most recent
payment of compensation made prior to the filing of such
petition.
77 P.S. § 772 (emphasis added); see also Whitfield, 188 A.3d at 612. The Whitfield
Court reasoned:
The approach set forth herein is consistent with the overall
remedial purpose and humanitarian objective of the [] Act,
which is intended to benefit the injured worker. Griffiths
v. Workers’ Comp. Appeal Bd. (Seven Stars Farm,
Inc.), . . . 943 A.2d 242, 255 ([Pa.] 2008). Otherwise, it
would appear that a claimant whose status was changed to
the 500-week, limited period of partial disability based
upon an unconstitutional IRE would have no other
mechanism of reinstating his or her right to total disability
benefits. Furthermore, because a claimant either still
receiving or recently receiving benefits may seek
modification, so long as the petition is filed within three
years of the date of the most recent payment of
compensation, it does not upset an employer’s expectation
of finality. The [] Act clearly contemplates future
modification as it provides a mechanism for claimants to
seek such modification.
Whitfield, 188 A.3d at 616. The Whitfield Court declared: “Allowing [the c]laimant
to seek modification under these circumstances does not prejudice employers or
insurers by upsetting their expectation of finality because such determinations are
7
not yet truly ‘final’ until three years have passed since the date of last payment.” Id.
at 617.
In City of Pittsburgh v. Workers’ Compensation Appeal Board
(Donovan), 252 A.3d 1189 (Pa. Cmwlth. 2021), this Court reaffirmed Whitfield,
explaining:
In Weidenhammer [v. Workers’ Compensation Appeal
Board (Albright College), 232 A.3d 986 (Pa. Cmwlth.
2020)], decided just last year, this Court reaffirmed
Whitfield’s approach. . . . After discussing the principles
governing the retroactive application of a new rule of law,
as expounded by our Supreme Court in Blackwell v. State
Ethics Commission, . . . 589 A.2d 1094 ([Pa.] 1991) . . . ,
this Court in Weidenhammer held that “the ruling in Protz
II was not intended to be given a fully retroactive
effect, without regard to the statute of repose in
[S]ection 413(a) of the Act . . . .” Weidenhammer, 232
A.3d at 995. In light of Whitfield and [Dana Holding
Corp. v. Workers’ Compensation Appeal Board (Smuck),
195 A.3d 635 (Pa. Cmwlth. 2018) (en banc) (]Dana I[),
aff’d, 232 A.3d 629 (Pa. 2020) (Dana II)9], [this Court]
summarized, “Protz II applies to cases in active
litigation when the Supreme Court issued its decision
or where a reinstatement petition is filed within three
years of the most recent compensation payment in
accordance with [S]ection 413(a) of the Act . . . .”
Weidenhammer, 232 A.3d at 991 (emphasis added).
Because the claimant in Weidenhammer had not sought
reinstatement of her total disability status within the three
years provided by [S]ection 413(a) of the Act, and because
her challenge was not preserved in active litigation at the
time Protz II was decided, the claimant was not entitled to
relief.
City of Pittsburgh, 252 A.3d at 1198 (bold emphasis added).
9
In Dana I, this Court held that “Protz II applies to cases where the underlying IRE was
actively being litigated when that decision was issued[.]” Dana I, 195 A.3d at 643. Our Supreme
Court affirmed this Court’s Dana I decision on June 16, 2020. See Dana II.
8
Here, in 2012, the parties agreed that Claimant’s disability status would
be modified from TTD to TPD effective as of his January 5, 2012 IRE date.
Claimant was not actively litigating that IRE when the Supreme Court decided Protz
II. Rather, post-Protz II, before his 500 weeks of TPD expired, Claimant sought to
change his disability status by filing his Reinstatement Petition. Accordingly,
Whitfield governs, and Claimant was entitled to have his TTD reinstated effective
May 14, 2019 (the Reinstatement Petition filing date), rather than January 5, 2012
(the date of his original IRE).
Claimant further asserts that the Protz II Court’s rendering of Section
306(a.2) of the Act void ab initio invalidated the IRE process in its entirety, such
that he should have been reinstated to TTD status effective as of the date of his
January 5, 2012 IRE. However, the Weidenhammer Court rejected that argument,
declaring:
Claimant may be correct that Protz II rendered former
Section 306(a.2) of the Act . . . void ab initio, but it does
not follow that the Pennsylvania Supreme Court
intended its ruling in Protz II to be given a fully
retroactive effect or to nullify the statute of repose in
Section 413(a) of the Act.
Id. at 994 (emphasis added); see also Ellison v. Se. Pa. Transp. Auth. (Workers’
Comp. Appeal Bd.) (Pa. Cmwlth. No. 1080 C.D. 2020, filed Aug. 20, 2021), appeal
denied, 268 A.3d 381 (Pa. 2021).10 In fact, this Court recently observed it “ha[s]
never held that any IRE preceding the Protz cases was automatically erased in its
entirety . . . .”11 Harold v. Abate Irwin, Inc. (Workers’ Comp. Appeal Bd.) (Pa.
10
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a). The unreported decisions herein are cited for their persuasive value.
11
Claimant contends that this Court’s ruling in Thompson v. Workers’ Compensation
Appeal Board (Exelon Corp.), 168 A.3d 408 (Pa. Cmwlth. 2017), mandates otherwise. We
acknowledge that the Thompson Court’s general statement that Protz II “essentially struck the
9
Cmwlth. No. 879 C.D. 2021, filed June 13, 2022), slip op. at 14. Therefore,
Claimant’s argument that the Protz II Court’s rendering of Section 306(a.2) of the
Act void ab initio invalidated the IRE process in its entirety, such that he should
have been reinstated to TTD status effective as of the date of his January 5, 2012
IRE, lacks merit.
Claimant also contends that Act 111’s retroactive application violates
article I, section 11 of the Pennsylvania Constitution, known as the Remedies
Clause,12 by depriving him of his substantive, constitutionally-protected, vested right
to receive ongoing TTD benefits.
The claimant in Pierson v. Workers’ Compensation Appeal Board
(Consol Pa. Coal Co. LLC), 252 A.3d 1169 (Pa. Cmwlth.), appeal denied, 261 A.3d
378 (Pa. 2021), similarly argued “that the General Assembly cannot take away his
‘vested rights[.]’” Id. at 1180. Relying on Whitfield, the Pierson Court described
that, although a WC claimant has a “certain right to benefits until such time as he is
entire IRE process from the Act[,]” id. at 412-13, which was interpreted to mean that “the Act no
longer contain[ed] a provision allowing for modification of benefits based on an IRE.” Timcho v.
Workers’ Comp. Appeal Bd. (City of Phila.), 192 A.3d 1219, 1222 (Pa. Cmwlth. 2018). However,
Thompson was one of the first cases this Court decided after the Supreme Court decided Protz II,
see Whitfield; this Court later determined that Thompson was not necessarily dispositive of when
and how disability benefits should be modified/restored in light of Protz II, see Womack v.
Workers’ Comp. Appeal Bd. (Phila. Parking Auth.) (Pa. Cmwlth. No. 14 C.D. 2018, filed Mar. 13,
2019); and, this Court did not have the benefit of its comprehensive Dana I or Whitfield analyses
when it decided Thompson. Accordingly, Thompson is inapposite.
12
Article I, section 11 of the Pennsylvania Constitution declares:
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale, denial
or delay. Suits may be brought against the Commonwealth in such
manner, in such courts and in such cases as the Legislature may by
law direct.
Pa. Const. art. I, § 11. “The Supreme Court stated that the purpose of the Remedies Clause is
protection from legislative action and to ensure a vested right is not eliminated by subsequent
legislation.” Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195 A.3d 635, 644 (Pa.
Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020); see also Konidaris.
10
found to be ineligible for them[,]” Section 413(a) of the Act creates a “reasonable
expectation[] under the Act that benefits may change.” Pierson, 252 A.3d at 1179.
The Pierson Court stated:
[C]laimants, such as the one in the matter before us, did
not automatically lose anything by the enactment of Act
111. Act 111 simply provided employers with the means
to change a claimant’s disability status from total to partial
by providing the requisite medical evidence that the
claimant has a whole body impairment of less than 35%,
after receiving 104 weeks of TTD benefits.
Id.
Following our decision in Pierson, this Court has
consistently held that Act 111 does not abrogate or
substantially impair a claimant’s vested rights in [WC]
benefits because there is no right to ongoing TTD status.
See, e.g., Hutchinson v. Annville Twp. (Workers’ Comp.
Appeal Bd.), 260 A.3d 360, 367 (Pa. Cmwlth. 2021)
(relying on Pierson to dismiss claimant’s constitutional
claims against Act 111).
DiPaolo v. UPMC Magee Women’s Hosp., 278 A.3d 430, 435 (Pa. Cmwlth. 2022);
see also Harold. Moreover, because the purpose of the Remedies Clause is to ensure
that “a vested right is not eliminated by subsequent legislation[,]” Dana I, 195 A.3d
at 644; see also Konidaris v. Portnoff Law Assocs., Ltd., 953 A.2d 1231 (Pa. 2008),
where a claimant does not have a vested right in WC benefits, the Remedies Clause
does not apply. See Jaskulski v. Workers’ Comp. Appeal Bd. (Weis Markets Inc.)
(Pa. Cmwlth. No. 797 C.D. 2021, filed Apr. 13, 2022); see also Stoshick v. Air Prods.
& Chems., Inc. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth. No. 27 C.D. 2021, filed
Feb. 3, 2022), appeal denied, (Pa. No. 90 MAL 2022, filed Aug. 8, 2022). Because
this Court has previously ruled that a WC claimant does not have a vested right to
ongoing TTD benefits that Act 111 violates, Claimant’s argument to the contrary is
unfounded.
11
Claimant further declares that Protz II must be applied retroactively
regardless of whether its holding constituted a new rule of law. However,
[this Court] previously explained:
A retroactive law has been defined as one which
relates back to and gives a previous transaction a
legal effect different from that which it had under
the law in effect when it transpired. . . . A law is
given retroactive effect when it is used to
impose new legal burdens on a past transaction
or occurrence.
Dep’t of Lab[.] [&] Indus., Bureau of Emp[.] Sec. v. Pa.
Eng’g Corp., . . . 421 A.2d 521, 523 ([Pa. Cmwlth.] 1980)
(emphasis added; internal citations omitted); see also
Passarello v. Grumbine, . . . 87 A.3d 285, 307 ([Pa.] 2014)
(requiring a decision to announce a new rule of law before
it can be given retroactive effect); Commonwealth v.
Hughes, . . . 865 A.2d 761, 780 ([Pa.] 2004) (explaining a
court decision is considered “new” for purposes of
retroactivity if it imposes a new obligation on the parties).
Our decision [in Whitfield] does not impose any new legal
consequences based upon a past transaction. Simply
because Protz II is being applied to a case that arose from
a work injury and a change in disability status that predates
it does not mean it operates retroactively. Warren v. Folk,
886 A.2d 305, 308 (Pa. Super. 2005). It would be
retroactive if it related back and gave a prior transaction a
legal effect different from that which it had under the law
in effect at the time. Id. This decision does not alter [the
c]laimant’s past status. Rather, it gives effect to the
[c]laimant’s status as it existed at the time she filed her
reinstatement petition, which was filed within the statutory
timeframe for filing such petitions.
Whitfield, 188 A.3d at 616-17 (footnote omitted; emphasis in original).
Accordingly, Claimant’s argument that Protz II must be applied retroactively
regardless of whether its holding constituted a new rule of law lacks merit.
Because this Court has previously ruled that Protz II did not invalidate
the entire IRE process, that Act 111’s application does not violate a WC claimant’s
12
vested right to ongoing TTD benefits, and that Protz II does not operate retroactively,
Whitfield and its progeny govern this matter, and the Board properly upheld the
WCJ’s decision granting the Reinstatement Petition effective May 14, 2019 (the
Reinstatement Petition filing date).
Claimant next argues that the Board erred by affirming the WCJ’s
decision granting the Modification Petition effective as of the September 17, 2019
IRE date, because Act 111, which purports to reinstitute the IRE procedure under
the Act for injuries occurring prior to October 24, 2018, is unconstitutional and
cannot be applied to workers injured before that date. However, in Rose
Corporation, this Court explained:
The plain language of Section 3 [of Act 111] establishes a
mechanism by which employers/insurers may receive
credit for weeks of compensation previously paid. First,
Section 3(1) [of Act 111] provides that an
employer/insurer ‘shall be given credit for weeks of total
disability compensation paid prior to the effective date of
this paragraph’ for purposes of determining whether the
104 weeks of total disability had been paid. This 104
weeks is important because, under both the former and
current IRE provisions, a claimant need not attend an IRE
until after the claimant receives 104 weeks of total
compensation . . . . Therefore, pursuant to Section 3(1) [of
Act 111], an employer/insurer will receive credit towards
this 104 weeks for any weeks of total disability benefits
that were previously paid prior to Act 111’s enactment.
Second, an employer/insurer will be given credit for any
weeks of partial disability compensation paid prior to
enactment of Act 111 “for the purposes of determining the
total number of weeks of partial disability compensation
payable under Section 306(a.3)(7) of the Act.” In short,
any week of partial disability previously paid will count
towards the 500-week cap on such benefits.
Accordingly, Section 3 of Act 111 does not evidence clear
legislative intent that the entirety of Act 111 should be
given retroactive effect. Instead, it appears the General
Assembly intended that employers and insurers that relied
13
upon former Section 306(a.2) [of the Act] to their
detriment by not pursuing other methods of a modification
should not bear the entire burden of the provision being
declared unconstitutional. Through the use of very careful
and specific language, the General Assembly provided
employers/insurers with credit for the weeks of
compensation, whether total or partial in nature,
previously paid. However, for the benefit of claimants, the
General Assembly also specifically reduced the
impairment rating necessary for a claimant’s status to be
changed from 49% or lower to 34% or lower, making it
more difficult for employers to change total disability
status to partial disability status. That the General
Assembly used specific language to give retroactive effect
to these carefully selected individual provisions does not
make the entirety of Act 111 retroactive as the amendment
lacks clear language to that effect.
Rose Corp., 238 A.3d at 561-62 (citations and footnote omitted).
While it is true that Section 306(a.3) [of the Act]
essentially reenacted the IRE provisions, importantly,
Section 306(a.3) [of the Act] did not take effect until it
was enacted on October 24, 2018. Therefore, until that
time, [an e]mployer could not utilize an IRE to change
[a c]laimant’s disability status, even if the IRE otherwise
complied with the later enacted requirements of Section
306(a.3)(1) [of the Act,] because no law permitted
[an e]mployer to utilize an IRE process until Act 111 was
enacted. There is no provision in Act 111 which
specifically or implicitly provides for an IRE performed
prior to Section 306(a.3) [of the Act]’s enactment to be
validated afterward. Arguably, this would undermine the
invalidation of IREs by the [Pennsylvania] Supreme Court
in Protz II, whereas the approach set forth herein gives
effect to the statutory language while upholding the
legislative balance of claimants’ and employers’/insurers’
interests in light of Protz II and Act 111.
Rose Corp., 238 A.3d at 563-64 (footnote omitted); see also Janison v. City of Phila.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth. No. 1335 C.D. 2021, filed June 29,
2022).
14
The Pierson Court also recognized that, “as [this Court] made clear in
Rose Corporation, the 104-week and credit provisions of Act 111 were explicitly
given retroactive effect by the clear language used by the General Assembly.”
Pierson, 252 A.3d at 1180; see also Janison; Jaskulski; Hender-Moody v. Am.
Heritage Fed. Credit Union (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth. No. 166
C.D. 2021, filed Feb. 15, 2022), slip op. at 7 (“Act 111’s IRE mechanisms can only
apply after an employee has received 104 weeks of total disability benefits, which
clearly contemplates application to injuries predating Act 111. 77 P.S. § 511.3(1).”
“Because our analysis in Pierson is directly applicable and controlling here, we
reject [the c]laimant’s constitutional challenge[] to Act 111.”). Based on this Court’s
previous rulings that Act 111 is constitutional and applicable to injuries occurring
prior to October 24, 2018, the Board properly upheld the WCJ’s decision granting
the Modification Petition effective as of the September 17, 2019 IRE date.
Conclusion
Based on the foregoing, the Board did not err by upholding the WCJ
determinations granting Claimant’s Reinstatement Petition effective May 14, 2019,
and granting the Modification Petition effective September 17, 2019. Accordingly,
the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond George, :
Petitioner :
:
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), : No. 23 C.D. 2022
Respondent :
ORDER
AND NOW, this 11th day of October, 2022, the Workers’
Compensation Appeal Board’s December 15, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge